http://www.exportlawblog.com/archives/71 Latest News on DDTC, BIS, OFAC, and other export law matters Wed, 08 Sep 2010 03:51:32 +0000 hourly 1 http://wordpress.org/?v=3.0 http://www.exportlawblog.com/archives/71/comment-page-1#comment-228 Mike Deal Wed, 13 Dec 2006 20:59:06 +0000 http://www.exportlawblog.com/archives/71#comment-228 Neither State nor Commerce have ever addressed the First Amendment issues involved in the deemed export rule, especially as applied to universities. Its one thing to regulate the performance of services on behalf of some foreign bad guy, but the attempt to control the dissemination of information to otherwise lawfully admitted foreigners that would be uncontrolled if disseminated to "U.S. persons" goes beyond the pale. See the 6th Circuits opinion in Junger v. Daley, which gave lesser scrutiny to encryption software sourcecode only because it had a functional characteristic. Given that the regs for technology transfers are entirely content, rather than function, driven; its hard to see how the export regs can avoid strict scrutiny. Neither State nor Commerce have ever addressed the First Amendment issues involved in the deemed export rule, especially as applied to universities. Its one thing to regulate the performance of services on behalf of some foreign bad guy, but the attempt to control the dissemination of information to otherwise lawfully admitted foreigners that would be uncontrolled if disseminated to “U.S. persons” goes beyond the pale. See the 6th Circuits opinion in Junger v. Daley, which gave lesser scrutiny to encryption software sourcecode only because it had a functional characteristic. Given that the regs for technology transfers are entirely content, rather than function, driven; its hard to see how the export regs can avoid strict scrutiny.

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